ERLE, J.-I do not think that I have any authority to assign counsel to a prisoner without his consent. I should be very glad if I could do so, but by allowing counsel to appear without any communication with the prisoner, and without his sanction, I might be authorizing a defence which the prisoner himself would never have made, and yet for which he must be responsible.

Parry suggested that as the jury had already found that the prisoner stood mute of malice, it was to be presumed that he fully understood all that was interpreted to him, and if on being told that a certain counsel had been assigned by the court to conduct his defence, he did not repudiate him, it might be taken that he assented to such a course.

ERLE, J.-He is not bound to give any assent to such a proposition, and I do not see how I can infer an assent from his silence. In treason, by a special act of Parliament, the court may assign counsel to a prisoner, but then it can only be done at his own request. The trial must proceed, and care being taken that the prisoner is made acquainted with all that transpires, he must pursue his own course.

A discussion subsequently arose as to whether each question and answer should be interpreted to the prisoner, or whether, when the evidence of each witness was concluded, the whole should be read over to him to afford an opportunity for cross-examination.

The learned judge thought the latter course the more convenient one; he had known it adopted in several cases, and, accordingly, that course was pursued. Verdict-Guilty.

Rodwell for the prosecution.

HOME CIRCUIT.

SURREY ASSIZES, 1854.

August 7.

(Before Mr. JUSTICE ERLE.)

REG. v. BERRIMAN.(a)

Concealment of birth-Period of gestation-Questioning prisoners by police officers-Questioning by magistrates-Evidence.

Where there is no clear evidence of an offence having been committed, a police officer is not justified, in consequence of mere rumours in a neighbourhood, in putting searching questions to a person for the purpose of eliciting the proof of a crime, as well as of that person's connection with it.

After the investigation before a magistrate on a charge of concealment of birth, and after the accused had been cautioned in the usual manner, and had stated that she had nothing to say, but before her actual committal, the presiding magistrate asked her what she had done with the body of the child:

Held, that her statement in answer was not admissible; nor would the learned judge allow a witness to be asked whether, “in consequence of such statement," he did a particular thing.

On a charge of concealment of birth, it must appear that the child had gone such a time in its mother's womb that it would, in the ordinary course of things, when born, have had a fair chance of life. Under seven months it may be fairly presumed that it would not be born alive. HE prisoner was indicted for concealing the birth of her child. It appeared in evidence that, in the neighbourhood in which the prisoner lived, rumours were afloat that she had been delivered of a child; the only ground for such suspicion being, that she was observed, up to a certain period, to increase in size, and that she had afterwards suddenly recovered her usual form.

In consequence of these rumours, a police officer went to her, charged her with having been recently delivered, and with having murdered the child, or at least concealed its birth. The result of his questioning was that she made a certain statement to him which he now detailed in evidence to the jury.

ERLE, J. (observing upon this evidence)-I very much disap

(a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law.

REG. บ.

BERRIMAN.

1854.

Evidence.

prove of this proceeding. By the law of this country, no person ought to he made to criminate himself, and no police officer has any right, until there is clear proof of a crime having been committed, to put searching questions to a person for the purpose of eliciting from him whether an offence has been perpetrated or not. Concealment of If there is evidence of an offence, a police officer is justified, after birtha proper caution, in putting to a suspected person interrogatories Gestationwith a view to ascertaining whether nor not there are fair and reasonable grounds for apprehending him. Even this course should be very sparingly resorted to. But here there was nothing whatever to show that any offence had been committed by any oneno finding of any body-no sign of delivery-no marks of blood -not the slightest indication in fact to point to crime, and then it is sought, by questioning the prisoner on the subject, to establish from her own lips the crime itself, as well as her guilty connection with it. What has been done here I have every reason to believe was done from no improper motive. It was, doubtless, an error of judgment, but I wish it to go forth amongst those who are inferior officers in the administration of justice, that such a practice is entirely opposed to the spirit of our law.

It further appeared that, on the investigation before the magistrate, after the prisoner had been cautioned in the usual manner, and had stated that she had nothing to say, the presiding magistrate, before committing her, asked her where she had put the body of the child.

Lilley (for the prisoner,) objected to her answer being received in evidence. The question was clearly an improper one. The magistrate had no right to interrogate the prisoner at all, except in the terms of the act of Parliament, and therefore, any answer given by her under such circumstances ought not to be admitted.

Locke (for the prosecution,) submitted that the statement was at all events evidence. She might have declined to answer the question, but having answered it, such answer could not be shut out. The magistrate had not, at the time, committed her for trial, and the question might have been put with a view to guide him in the exercise of his discretion, as to committing her or not.

ERLE, J.-I shall certainly refuse to allow any such evidence to be given. The question ought never to have been put, and it would be very unfair towards the prisoner to receive in evidence an answer so irregularly elicited.

Locke then proposed to put to a witness a question, whether in consequence of the answer she had given to the magistrate, he had made a search in a particular spot, and had found a certain thing.

ERLE, J.-No! Not in consequence of what she said. You may ask him what search was made, and what things were found, but under the circumstances, I cannot allow that proceeding to be connected with the prisoner.

Evidence was then given that on searching a certain spot, some bones were found half calcined, and a surgeon deposed that in his

REG.

v.

BERRIMAN.

1854.

Concealment of birthGestation

Evidence.

gone

judgment they were those of a child, of which the mother must have from seven to nine months. This evidence, connected with the statement the prisoner had made to the policeman, that she had been delivered of a child and had burnt the body, formed the evidence for the prosecution.

Lilley submitted that there was no case to go to the jury; that even if they could be asked to presume that she was the mother of the child whose bones had been produced, there was no clear and substantial proof that the foetus had arrived at that period of maturity that it could have been a living child.

ERLE, J., thought that there was enough to go to the jury, and afterwards, in summing up the case, thus laid down the law on the point mooted by the learned counsel :

This offence cannot be committed unless the child had arrived at that stage of maturity at the time of birth, that it might have been a living child. It is not necessary that it should have been born alive, but it must have reached a period when, but for some accidental circumstances, such as disease on the part of itself or of its mother, it might have been born alive. There is no law which compels a woman to proclaim her own want of chastity, and if she had miscarried at a time when the foetus was but a few months old, and therefore could have had no chance of life, you could not convict her upon this charge. No specific limit can be assigned to the period when the chance of life begins, but it may, perhaps, be safely assumed that under seven months the great probably is that the child would not be born alive.

Locke for the prosecution.

Lilley for the defence.

Verdict-Not guilty.

WESTERN CIRCUIT.

DORSET SPRING ASSIZES, 1853.

REG. v. -.(a)

Practice-Amendment-Variance.

Where an indictment for concealing the birth of a child alleged the concealment to have been in and among a certain heap of carrots, and the evidence was, that the body was laid upon the heap, but behind it, so that it was hidden from the passers by the upper part of the heap : Semble, that the evidence did not support the indictment. Held, that the provision of sect. 1 of 14 & 15 Vict. c. 100, empowering the judge to amend certain variances between the indictment and the evidence did not extend to such an amendment as this.

PRISONER was indicted for concealing the birth of her child, by placing it on and among a certain heap of carrots.

The evidence was, that the carrots were in a conical heap, and that the body was placed on the back of the heap of carrots, so that the middle of the heap hid, by its height, the body from the view of passers by.

CROMPTON, J., expressed a strong doubt whether this sustained the allegation of concealment in and among the carrots.

Edwards (for the prosecution), contended that the proof was sufficient, but if it was the opinion of his lordship that it was not, he would apply to the judge to amend under sect. 1 of 14 & 15 Vict. c. 100, which empowers the judge to amend any variances between the statement in such indictment and the evidence offered in proof thereof," in the name or description of any matter or thing whatsoever" in the indictment named or described, the word "matter," meaning, as he contended, any circumstances narrated, as" thing," meant any subject or object named.

CROMPTON, J., was of opinion that under the section he had not jurisdiction to make the amendment.

Edwards for the prosecution.

Ffooks for the prisoner.

The prisoner was acquitted.

(a) Reported by EDWARD W. Cox, Esq., Barrister-at-Law, to whom it was communicated.